Warrantless mandatory blood alcohol tests shouldn't be a debate at all

By Law Office of John W. Redmann, L.L.C. of Law Office of John W. Redmann, L.L.C. on Thursday, January 10, 2013.

A case that started in Missouri has made it all the way to the US Supreme Court, and their decision on the case will have longterm, potentially devastating consequences for all of us. The case involves the Constitutionality of a police officer forcibly administering a blood test to a driver the officer suspects of being intoxicated without first obtaining a court-issued warrant.

Laws vary from state to state, but generally, a driver suspected of being intoxicated is asked by the police officer to pass a series of tests such as reciting the alphabet and walking a straight line. Failure to pass those tests means the suspect is asked to take a breathalyzer test. If the driver refuses to take the breathalyzer test, the officer can force the driver to take a blood test; however, a court order must first be obtained to take a blood test, and the court order requires the officer to demonstrate probable cause. The argument in this case centers on this court order: Due to the timely nature of blood alcohol content, should police officers be allowed to immediately extract blood from a suspect, forgoing a warrant? Are we comfortable with a police officer performing a medical procedure on a suspected drunk driver against the driver's will?

Absolutely not, I say. It's striking that there's even a debate about whether a warrant should be needed. Our Constitution guarantees our rights against invasion of privacy, against self-incrimination, and against unlawful search and seizure, and our entire justice system is founded upon a prosumption of our innocence. The invasion of a person's body and taking of his or her blood certainly does not merit "presumed innocence."

Proponents of permitting blood tests without warrants argue that after the traffic stop, the evidence (the alcohol in the bloodstream) is being rapidly filtered out of the digestive system, into the blood, and then from the blood to the urinary tract where it is evacuated. Enforcement agencies argue this is akin to a criminal suspect "destroying" evidence and creating an exigent circumstance, thus taking too much critical time to go out and ask a local judge to issue a warrant to force a blood test. The opponent's response to this charge is twofold. First, the amount of time to have a warrant issued is typically so short (within 30 minutes to an hour, generally) that the "disappearing evidence" argument is not a concern (And, in fact, it hasn't even been used as an argument in the case currently facing the Supreme Court.). And secondly, that proponents argue police officers should be allowed to unilaterally dispense with judicial oversight of such major decisions involving search, seizure, invasions of privacy, and injection of needles into somebody's body against that person's will is very scary indeed. The lack of supervision of an officer administering a blood test is very troubling, and that's not to mention questions about how well he or she has been trained to perform such a test.

As such, it should not be a debate about whether a warrant is needed to force a suspect presumed innocent to undergo an unnecessary and medically invasive procedure for state prosecution purposes. I say, convince a judge that it's necessary and get a warrant, if you can.

Note that this is not a plea to try to help suspected drunk drivers. Rather, it's a plea to show respect to the higher ideal of keeping government and law enforcement officials in check and honoring ALL of our Constitutional rights. That a police officer's job may be made easier and more convenient is not justification to violate our inalienable human rights. There are other means of prosecuting drunk driving cases, and, in fact, conviction rates in these cases remain high even when the suspect refuses a blood test, due to the availability of other forms of evidence such as witness testimony and field sobriety tests.

There are consequences to these rights, to be sure; many drunk drivers may go unpunished because of these rights. But our Constitutional mandate of presumed innocence along with a very intricate judicial process comes with those consequences. Benjamin Franklin famously said that those who are willing to give up liberty in the name of security deserve neither. The debate we should be having about this subject is whether or not it's Constitutional for a police officer to take a blood or urine test of a drunk driving suspect even with a warrant. Let's have a real debate.

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